Post-Independence Day: The Fading of the Teaching Print
By Hadley Arkes   
Monday, 05 July 2010

We interrupt this subset of columns on pro-life legislation and the hearings over Elena Kagan to take account of some curious inversions that have come along with July Fourth: We find ourselves celebrating Independence Day while some of our leading commentators have managed to detach the understanding of Independence and America from the teaching that was proclaimed to the world on that July 4, 1776.  

And so, in a moving speech on Memorial Day, that remarkable man of the law, Michael Mukasey, noted quite rightly that America was not defined by “blood or soil.” But in bringing home his point, he declared that America “is the only country in the history of the world to define itself based on adherence to a legal document, the constitution.”  

This sense of the matter has been echoed widely, even as we have come to celebrate July Fourth. I’ve been a considerable fan of Judge Mukasey, but the former Attorney General should have known better. The clue came when Mukasey invoked Lincoln several times, and yet completely disregarded the prime lesson in Lincoln’s teaching. Lincoln famously said at Gettysburg that our “nation” had been brought forth “four score and seven years ago.” Counting back eighty-seven years from Gettysburg does not get us to the Constitution (1787-88). Lincoln found the beginning of the nation in 1776, with the Declaration of Independence. 

The country was based on that “proposition,” as he called it, “all men are created equal.”  From that proposition everything else radiated. The nation began with the articulation of that first principle that marked the character of the American regime. The task of forming a constitution was to arrange a practical structure of governance that would be consistent with that first principle. What Mukasey referred to as “the constitution” is our second constitution, the one we adopted after the first one proved defective.  

The Constitution said in the preamble that it was made for the purpose of bringing about “a more perfect Union.” As Lincoln reminded us, then, the Union was older than the Constitution. Lincoln once drew on Proverbs 25: that a word fitly spoken is like an apple of gold in a frame of silver. The word fitly spoken was the proposition “all men are created equal,” and that was the “apple of gold.” That was that proposition that also entailed the conclusion, drawn in the Declaration, that the only rightful governments over human beings were those “deriving their just powers from the consent of the governed.”  

That was the principle that called into radical challenge the justice of human slavery. The American Founders had to make a prudential accommodation with the evil of slavery for the sake of preserving the Union,  but they would withhold, from the Constitution, any moral endorsement of slavery. Their hope, as Lincoln said, was to put slavery “in the course of ultimate extinction.” If Americans were lured beyond that accommodation – if they were lured into a moral indifference to the preservation and extension of slavery – they would gently talk themselves out of the ground of their own freedom. As he drew out the understanding of the apple of gold, Lincoln wrote that:

the Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple – not the apple for the picture.
Translation: The Constitution was made for that first principle that defined the character of this new American regime. This new American polity was not made for the Constitution.   Lawyers can invoke different clauses of the Constitution, whether the Commerce Clause, Equal Protection, Privileges and Immunities. But the meaning of these clauses will depend on who those persons are who are the bearers of “rights,” and that understanding is not to be found in the Constitution. 

Everything will come back, as John Paul II said, to the meaning of “the human person” that the law is seeking to protect and restrain. And so we find lawyers professing to be anguished about the Constitution, and worried that the right to abortion may be threatened. They know formulas and clauses in the Constitution, but not the deeper principles that supply the meaning to the Constitution.

It is worth reminding even the former Attorney General that the Constitution drew on principles of lawfulness that were there before the Constitution. They were the principles that barred “ex post facto laws” and “bills of attainder,” and enjoined us to “presume in favor of the innocence of the accused.” They were the principles that the framers drew upon as they set upon the task of composing the Constitution. And their validity as principles commanding our respect would have been the same even if they were never mentioned in the text of the Constitution – as indeed, “presumed innocent” has never been.

The deeper irony of our own time is that we have seen some of the most anguished concern for the Constitution on the part of lawyers and professors who have worried that the right to abortion could be threatened, or that the government is detaining, without trials, enemy combatants committed to the killing of Americans. The strange part is that some of these lawyers have been quite emphatic in their insistence that there are no moral truths. But if there are no moral truths, why would those rights of the Constitution have a claim to our respect as things “just” and “good”? One begins to suspect that some of these lawyers have latched onto the Constitution to take the place of the moral truths they no longer credit. But they have made the Constitution in that way an idol. An idol to be revered, magnificently detached now from any claims to truth or reason.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths:  The Touchstone of the Natural Law. 

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